To Fully Protect Nation's Waters, Congress Must Act

Supreme Court Refuses to Clarify Ruling in Rapanos, Puts Ball in Congress’ Court“The new Congress must make it a top priority to restore full protections to our waters.”

BIRMINGHAM, AL (December 2) – The Supreme Court’s refusal to hear a case that could have clarified the nation’s clean water protections highlights the urgent need for Congress to act.

“The new Congress must make it a top priority to restore full protections to our waters,” said Jan Goldman-Carter, Wetlands and Water Resources Counsel for the National Wildlife Federation. “The responsibility to clarify the law lies with Congress. Today’s decision highlights that fact.”

“The courts have created a mess they can’t fix,” added Jim Murphy, an attorney for National Wildlife Federation. “In the meantime, polluters are being let off the hook and basic pollution protections for our waters are being hobbled.”

The United States Supreme Court declined to review a federal appeals court ruling that had the effect of overturning a criminal conviction of an industrial pipe manufacturer found guilty of illegally dumping oil, lead, zinc, grease and other pollutants into Avondale Creek in Alabama, a permanently flowing stream that eventually flows into the navigable Black Warrior River.

In the case, United States v. McWane, the government requested Supreme Court review in an attempt to provide clarity regarding how to apply and interpret the fractured 2006 Supreme Court decision in Rapanos v. United States. The Rapanos ruling provided no clear standard, but its splintered decision has put at risk basic Clean Water Act protections for countless stream miles and wetlands throughout the Nation.

The appeals court decision, which has binding effect in the states of Alabama, Georgia and Florida, found that the government must meet a time consuming case-by-case test to determine whether even permanently flowing streams are protected by the Clean Water Act. This is despite the fact eight out of nine Supreme Court Justices would likely find the stream at issue in the McWane case categorically protected and that the McWane decision conflicts with other appeals court rulings, creating a “circuit split.”

The facts of McWane were clear. According to the government, the plant was engaged in knowingly dumping polluted wastewater in violation of its permit into the creek. Dumping often times occurred at night and during storms in order to avoid detection. It was found that McWane employees were directed to cover up the discharges by, for instance, falsifying a report and lying to a state investigator about the cause of the pollution.

The state of the law is so confusing that the trial judge, Judge Propst, in the McWane case requested that another judge rehear the case because he felt there was not clear legal guidance he could apply. In doing so, Judge Propst did not mince words, calling the state of the law “absurd” and stating that he “will not compare the [Rapanos] ‘decision’ to making sausage because it would excessively demean sausage makers.”

The consequences of this confusion are real. In its brief requesting Supreme Court review of the McWane case, the government stated that if it had been required to follow the decision over the previous year it would have required almost 30,000 additional hours of personnel time just to review case files in the states of Florida, Georgia and Alabama. An Environmental Protection Agency memo leaked earlier this year stated that at least 500 water pollution enforcement cases have either been shelved or hampered due to the Rapanos decision.

“Congress can end the confusion, delays, and resulting pollution to the waters that sustain our communities and wildlife by passing the Clean Water Restoration Act,” said Ms. Goldman-Carter. “This simple fix would clearly restore the historic protections that had effectively been in place for almost 30 years.”